Copyright and Fair Use

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A healthy copyright system must balance the need to provide strong economic incentives through exclusive rights with the need to protect important public interests like free speech and expression. Fair use is foundational to that balance. It's role is to prevent copyright from stifling the creativity it is supposed to foster, and from imposing other burdens that would inhibit rather than promote the creation and spread of knowledge and learning.

The Fair Use Project (FUP) was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of fair use in order to enhance creative freedom and protect important public rights. It is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims, or other improper restrictions on their expressive interests. The FUP has litigated important cases across the country, and in the Supreme Court of the United States, and worked with scores of filmmakers and other content creators to secure the unimpeded release of their work.

Daniel is a Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents at the Electronic Frontier Foundation. He is part of EFF's intellectual property team and focuses on patent reform. Before joining EFF, Daniel was a Residential Fellow at Stanford Law School's Center for Internet & Society where he represented writers, painters, filmmakers, and others who rely on fair use to create their art and scholarship.

Miquel Peguera, Associate Professor of Law at the Universitat Oberta de Catalunya (UOC) (Barcelona, Spain). PhD in Law, University of Barcelona (2006), with a dissertation on the liability of Internet intermediaries. Visiting Scholar at the University of Columbia School of Law (2007-08). His research focuses on the legal aspects of the information society, and particularly on ISPs’ liability. His publications include “When the Cached Link is the Weakest Link: Search Engine Caches under the Digital Millennium Copyright Act”, 56 Journal of the Copyright Society of the U.S.A.

Ademir splits his time between two worlds. He is part-time is in academia, currently taking a PhD at University of Sao Paulo. His research focuses on efforts by Latin American regulators to promote increased access to broadband Internet and implement a network neutrality regime. He has been particularly interested in the debate involving the regulation of network neutrality in Brazil and the US, and has submitted contributions to the Brazilian Ministry of Justice and to the US Federal Communications Commission.

Chris Ridder is a Non-Residential Fellow at the Center for Internet and Society (CIS). His research interests include the full range of issues that arise at the intersection of technology and the law, including the application of intellectual property law to software and the Internet, and the impact of technological change on privacy and civil liberties. Prior to joining CIS, Chris was an associate at Simpson Thacher and Barltett LLP, where he litigated intellectual property and complex commercial cases.

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At CEIPI, I have co-authored with Christophe Geiger and Oleksandr Bulayenko a position paper discussing the proposed introduction in EU law of neighboring rights for press publishers for the digital uses of their publications. The proposal is included in the European Commission’s Draft Directive on copyright in the Digital Single Market of September 14, 2016. Below you find the summary of the paper:

Many in Silicon Valley say: thumbs down to fake news! Not so fast. Great satire can be fake news! That's because satire is often "pure fiction masquerading as truth," or even real truth masquerading as fiction. Plus, satire is legally protected. Don't throw the satire baby out with the fake news bathwater. Read how!

With the Second Circuit’s recent decision in EMI v. MP3Tunes, the formerly small body of case law interpreting § 512(i) of the DMCA – the “repeat infringer” provision – continues to grow. Last year, for example, district courts held service providers ineligible for safe harbor for failing to comply with § 512(i) in two closely watched cases, BMG Rights Management v.

The Center for Internet and Society just wrapped up its Law, Borders, and Speech Conference. We had an amazing line-up of speakers and a great set of topics -- the event was a blast, and we are getting enthusiastic feedback from newly minted Internet jurisdiction nerds and old hands alike.

The Recording Industry Association of America (RIAA) is at it again. In a joint open letter to Congress, it is leading a push by the music industry to rewrite Internet copyright law in ways similar to its advocacy of the infamous Stop Online Piracy Act (SOPA) of 2012. SOPA failed miserably in Congress. It was abandoned after more than 15 million Americans objected to the bill’s attempt to restrict Internet freedom as 115,000 websites staged a massive blackout online.

In the last two decades, the industry has deployed endlessly the rhetoric of the “digital threat” in order to demand harsher measures against digital piracy. Recently, the “digital threat” discourse called for enhanced liability of online intermediaries, especially those whose platforms may be used to infringe copyright. This short paper shows that the “digital threat” discourse is based on shaky grounds. Two related arguments might run against this approach. First, market conditions might incentivise piracy.

We represented visual artist Shepard Fairey in connection with the AP’s claim that his iconic “Hope” poster in support of President Obama’s campaign infringes the AP’s copyrights. We represented Fairey because we believe his artistic transformation of a news photograph to convey a political message fell within the protection of the fair use doctrine and presented an important example of why fair use is essential for free expression.

After the Estate of James Joyce refused to allow a scholar to quote Joyce in her book, we successfully defended her right under the fair use doctrine to use the quotes she needed to illustrate her scholarship. After we prevailed in the case, the Estate paid $240,000 of our client’s legal fees.

After Original Talk Radio Network, the nationwide distributor of Michael Savage’s radio show, issued a takedown notice against a video critical of Savage’s portrayal of Muslims, we filed a lawsuit that convinced the company to withdraw its objections to our client’s film.

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"Daniel Nazer, a lawyer with the Electronic Frontier Foundation, told Fortune that applications to patent the blockchain — which is a form of software — face a high hurdle due to a Supreme Court case called Alice. That decision ruled that most, or perhaps all, software patents are abstract ideas that are ineligible for patent protection.

"US Patent No. 8,856,221 is called the "System and method for storing broadcast content in a cloud-based computing environment." In short, the invention claims ownership of a method to deliver media content from remote servers—the cloud, as we now know it—to computers.

"“This is a tremendously important improvement for consumer protection,” says Andrea Matwyshyn, a professor of law and computer science at Northeastern University. “The Copyright Office has demonstrated that it understands our changed technological reality, that in every aspect of consumers’ lives, we rely on code,” says Matwyshyn, who argued for the exemptions last year.

Thursday, April 16

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The song “Happy Birthday” has a long, litigious history dating back to the 1930s. Every year, people spent millions in royalties to use the song, until a class action lawsuit was brought challenging whether the owner, Warner/Chappell Music, actually owned the copyright it so aggressively enforced. Elizabeth Townsend-Gard, Tulane School of Law professor specializing in copyright law, discusses the case of “Happy Birthday.”

CIS Affiliate Scholar David Levine interviews Pedro Roffe of the International Centre for Trade and Sustainable Development and Prof. Xavier Seuba of the University of Strasbourg, co-editors of ACTA and the Plurilateral Enforcement Agenda.